HELENA — The attorney for Barry Beach is asking the state Supreme Court to reconsider its decision to put the man convicted of murdering his classmate in 1979 back in prison after 1 ½ years of freedom.
Beach backers view the petition for rehearing, filed Tuesday, as a first step in what promises to be a lengthy battle. But Beach could be running out of options to prove his innocence if the high court stands by this month’s decision to uphold Beach’s original 100-year sentence without the possibility of parole.
Attorney Terrance Toavs said in his petition that the Supreme Court originally left it to District Judge E. Wayne Phillips to determine the credibility of new witnesses who claim 17-year-old Kim Nees was killed in an out-of-control fight among girls, not by Beach.
But the majority of justices in the Supreme Court’s recent 4-3 decision “discarded wholesale” Phillips’ findings from the 2011 hearing and instead applied a new standard of review in the case, Toavs wrote.
The attorney also disagreed with the majority Supreme Court opinion that said Phillips did not give enough consideration to Beach’s original confession when weighing the new evidence.
The justices overlooked discrepancies in the confession, Toavs wrote, adding that they should have considered testimony from an expert on false confessions and other witnesses.
Attorney general spokesman John Barnes said his office had no comment on the petition.
Phillips’ 2011 decision to order a new trial resulted in Beach being freed. He moved to Billings and started a new life, with a house and a job, after spending nearly three decades in prison for the killing.
Prosecutors, the victim’s immediate family and others remained adamant over the years that Beach was guilty, and that he killed Nees after she resisted his advances late one summer on the Fort Peck Indian Reservation near Poplar.
Centurion Ministries director Jim McCloskey, who has long advocated for Beach’s release, said there could be options to argue in state court that Beach’s 100-year sentence was too harsh. Beach was a 17-year-old juvenile at the time of the 1979 crime, he said.
McCloskey said the group can help Beach try to take his case to federal court.
“We are going to do our best for however long it takes. We are starting all over in some ways,” Mcloskey said. “There is no question we have a long row to hoe. It is not going to be easy. But we still think we have a decent shot at turning this thing around.”
Some backers have started a petition that asks Gov. Steve Bullock to take an unspecified action to release Beach. It is unclear what Bullock could do after a request for executive clemency was rejected under the Schweitzer administration.
Bullock was attorney general up until last year. In that office, he defended the original conviction from Beach’s attempts to get a new trial.
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